Can federal judges base rulings on their own investigations?

Last year, when U.S. District Judge Sterling Johnson of Brooklyn was skeptical about the impact of a suit accusing a Subway restaurant of failing to provide access to customers in wheelchairs, he took a field trip. According to an opinion he wrote in March 2013, Johnson checked eight establishments that had been targeted in Americans with Disabilities Act suits by the same team of plaintiffs lawyers. The cases had all been resolved through settlements or default judgments, but Johnson was shocked to discover that the defendants hadn’t bothered to fix handicapped access problems. The judge’s fact-finding mission confirmed his worst suspicions that the lawyers who brought the cases were more concerned about ginning up fees for themselves than about the civil rights of the disabled.

Judge Johnson’s opinion denying any fees to lawyers he described as “parasites” was based on many considerations aside from his field trip to the targeted restaurants. But when the 2nd Circuit Court of Appeals reviewed his opinion, Johnson’s judicial expedition was all that mattered. In a much-discussedsummary order on March 11, Chief Judge Robert Katzmann, Judge Robert Sack and U.S. District Judge Jed Rakoff (sitting by designation) held that Johnson erred when he drew conclusions from his own investigation. The 2nd Circuit said that according to the rules of evidence in federal court, judges are permitted only to consider indisputable facts from unquestionable sources. Judge Johnson hadn’t permitted the restaurants he visited nor the plaintiffs’ lawyers in the case to contest or explain what the judge witnessed. The appeals court judges said that under those circumstances, they couldn’t be sure that the restaurants’ conditions were beyond dispute.

The clear message from the 2nd Circuit was that Judge Johnson should not have permitted his own investigation to affect his decision. That certainly seems like a reasonable conclusion. In our adversary system, judges are supposed to preside over investigation by opposing parties, not to conduct their own independent fact-finding outside of the courtroom. But in a decision this week, Judge Richard Posner of the 7th Circuit Court of Appeals has done exactly what the 2nd Circuit seems to have frowned upon in its ruling on Judge Johnson’s restaurant visits.

Posner and his 7th Circuit colleague Michael Kanne held that employees of the poultry processors JCG Industries and Koch Foods are not entitled to overtime pay for the time they spend putting on and taking off protective equipment during their half-hour, midshift lunch break. There’s a lot of discussion of “donning and doffing” under the Fair Labor Standards Act, Illinois labor law and the U.S. Supreme Court’s decision this term in Sandifer v. U.S. Steel. I suspect the fine points of that analysis will be of interest to labor and employment lawyers in the 7th Circuit and not so much to anyone else. What’s notable, though, is how Posner satisfied his curiosity about how long it really takes chicken-processing workers to get into and out of their protective gear -sterilized jackets, plastic aprons, cutresistant gloves, plastic sleeves, earplugs, and hairnets – and how the judge’s efforts to answer that question shaped the 7th Circuit’s decision in the case.

The adversary system, Posner said, isn’t always well designed to reach objective truth. The chicken factory workers would probably say they spent half of their 30-minute lunch break getting into and out of their gear. The companies might counter that the process took no more than a few minutes. “How would a judge or jury know who was telling the truth?” Posner wrote. “The plaintiffs could be filmed changing, but their incen tive would be to dawdle; the company could doubtless find a few speed demons among the workers. The limitations of the trial pro cess as a method of finding certain types of fact must be recognized.”

Posner figured he could do better, so he “decided to experiment with a novel approach,” he wrote. His chambers identified the particular equipment used by the workers in this case, then ordered the inexpensive gear from the same suppliers that sell to the defendants. Three members of Posner’s staff were videotaped putting on and taking off the equipment. The results? “The videotape reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds,” Posner wrote. “The total, 110 seconds, is less than two minutes, even though the ‘actors’ had never worked in a poultry processing plant and were therefore inexperienced donners/doffers of the items in question.”

Posner cautioned that his experiment wasn’t evidence. His intention, he said, was “to satisfy curiosity rather than to engage in appellate fact-finding.” Nevertheless, he said his results confirmed the “common sense intuition” that workers don’t need half of their lunch break to deal with their gear. A reasonable jury couldn’t conclude otherwise, Posner said, so the workers’ changing time isn’t a triable issue of fact.

Posner also justified his citation of extraneous information that wasn’t before the trial court. He pointed out that when he wrote the 7th Circuit opinion in the Sandifer “donning and doffing” case, he included a photo of the uniform that workers changed into and out of, even though that photograph wasn’t in evidence in the trial court. When the Supreme Court unanimously affirmed his opinion in January, the court’s opinion referred to the photograph in a footnote, Posner said, and didn’t express any concerns about Posner’s reliance on it. “Common sense has a place in adjudication,” Posner said.

Was Posner’s donning and doffing experiment – and his discussion of it in the 7th Circuit’s majority opinion – within the bounds of judicial authority? Not according to Chief Judge Diane Wood of the 7th Circuit, who sat on the panel that heard the chicken processing case. In a dissenting opinion, Wood disagreed as a matter of law with Posner and Kanne on whether the workers have claims for the meal-break time lost to changing into and out of their gear and washing up. But she also took issue with Posner’s independent investigation, which she said was “beyond the proper appellate role.”

There’s a serious evidentiary conflict between chicken processing workers and their employers, Wood said, over how much meal time workers lose to donning and doffing their equipment. “I am startled, to say the least, to think that an appellate court would resolve such a dispute” outside of the courtroom, she said. Moreover, Posner didn’t even conduct his experiment until after oral argument in the case, so there was no opportunity for the lawyers to address his findings. And unlike the photograph Posner included in the Sandifer opinion, whose accuracy “could presumably not be contested,” Wood said, his experimental donning and doffing results are very much a contestable matter. “To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries,” Wood wrote.

I’m usually all for Judge Posner’s common-sense approach to judging, but in this case even he concedes he’s engaged in a “novel” inquiry. It’s also troubling that the judge seems to have been predisposed against the workers’ account of how long it takes them to change. American judges aren’t supposed to be investigators or adversaries. Posner’s opinion appears to veer over the line.